1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 REGINALD L. MCCOY, No. 1:21-cv-00978-JLT (HC)

12 Petitioner, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

13 v.

FINDINGS AND RECOMMENDATION TO

14 WARDEN DORMAN, DISMISS PETITION FOR WRIT OF

HABEAS CORPUS

15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 On June 21, 2021, Petitioner filed the instant petition. He is in the custody of the Bureau 18 of Prisons (“BOP”) at the United States Penitentiary located in Atwater, California. He 19 challenges the warden’s consideration of his petition for release. The petition is unexhausted. 20 Therefore, the Court will recommend the petition be DISMISSED without prejudice. 21 DISCUSSION 22 I. Exhaustion 23 Before filing a petition for writ of habeas corpus, a federal prisoner challenging any 24 circumstance of imprisonment must first exhaust all administrative remedies. Martinez v. 25 Roberts, 804 F.2d 570, 571 (9th Cir. 1986); Chua Han Mow v. United States, 730 F.2d 1308, 26 1313 (9th Cir. 1984); Ruviwat v. Smith, 701 F.2d 844, 845 (9th Cir. 1983). The requirement that 27 federal prisoners exhaust administrative remedies before filing a habeas corpus petition was 28 judicially created; it is not a statutory requirement. Brown v. Rison, 895 F.2d 533, 535 (9th Cir. 1 1990). Thus, “because exhaustion is not required by statute, it is not jurisdictional.” Id. If 2 Petitioner has not properly exhausted his claims, the district court, in its discretion, may either 3 “excuse the faulty exhaustion and reach the merits or require the petitioner to exhaust his 4 administrative remedies before proceeding in court.” 5 The first step in seeking administrative remedies is a request for informal resolution. 28 6 C.F.R. § 542.13. When informal resolution procedures fail to achieve sufficient results, the BOP 7 makes available to inmates a formal three-level administrative remedy process: (1) a Request for 8 Administrative Remedy (“BP-9”) filed at the institution where the inmate is incarcerated; (2) a 9 Regional Administrative Remedy Appeal (“BP-10”) filed at the Regional Office for the 10 geographic region in which the inmate’s institution is located; and (3) a Central Office 11 Administrative Remedy Appeal (“BP-11”) filed with the Office of General Counsel. 28 C.F.R. § 12 542.10 et seq. 13 According to the petition, Petitioner submitted a BP-9, petition for compassionate release, 14 which was denied on May 21, 2021. (Doc. 1 at 3.) He indicates that he submitted a BP-10 appeal, 15 which is pending. (Id.) Because his BP-10 appeal is pending and Petitioner has not indicated that 16 he has sought any further administrative appeals, including a BP-11 “Central Office 17 Administrative Remedy Appeal,” his claim has not been administratively exhausted. 18 Although the exhaustion requirement is subject to waiver in § 2241 cases “it is not lightly 19 to be disregarded.” Murillo v. Mathews, 588 F.2d 759, 762, n.8 (9th Cir. 1978) (citation omitted). 20 A “key consideration” in exercising such discretion is whether “relaxation of the requirement 21 would encourage the deliberate bypass of the administrative scheme[.]” Laing v. Ashcroft, 370 22 F.3d 994, 1000 (9th Cir. 2004) (internal quotation marks omitted). In this case, it is clear that 23 Petitioner has deliberately bypassed the administrative review process. Such action should not be 24 encouraged. The Court finds the petition should be dismissed for lack of exhaustion. 25 ORDER 26 The Clerk of Court is DIRECTED to assign a District Judge to this case. 27 RECOMMENDATION 28 For the foregoing reasons, the Court RECOMMENDS that the petition for writ of habeas 1 corpus be DISMISSED without prejudice for failure to exhaust administrative remedies. 2 This Findings and Recommendation is submitted to the United States District Court Judge 3 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 4 Local Rules of Practice for the United States District Court, Eastern District of California. 5 Within twenty-one days after being served with a copy, Petitioner may file written objections 6 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings 7 and Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 8 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified 9 time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 10 1153 (9th Cir. 1991). 11

IT IS SO ORDERED.

12

13 Dated: June 23, 2021 _ /s/ Jennifer L. Thurston

CHIEF UNITED STATES MAGISTRATE JUDGE

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